SFFA In The Courts: Where We Are Before The Administration Change

• Published date: 23 January 2025
• Subject Matter: Corporate/Commercial Law, Consumer Protection, Government, Public Sector, Litigation, Mediation & Arbitration, Government Contracts, Procurement & PPP, Education, Trials & Appeals & Compensation, Diversity, Equity & Inclusion
• Law Firm: Foley Hoag LLP
• Author: Ms Emily Nash, Kenny Peralta and Howard Weiss

Key Takeaways:

• Litigants have begun testing the reach of SFFA to other aspects of organizations' operations, well beyond college admissions.
• Scholarship and grant programs, procurement policies, and employment decisions have faced challenges within higher education and beyond.
• Higher education institutions and other organizations should audit their policies and programs to assess if and where race-based decision making is involved.

It has been over a year since the Supreme Court issued its decision striking down Harvard's and the University of North Carolina's admissions policies in Students for Fair Admissions ("SFFA") v. Harvard College and SFFA v. University of North Carolina (together referenced herein as "SFFA"). The Court's holding in SFFA addressed only university admissions programs, but as many anticipated, the decision's impact has not been so limited. With the incoming second Trump administration and a new Congress beginning its term, legislative and regulatory changes in this space are sure to follow. In advance of this transition, we are taking stock of SFFA's reach now, based on activity in the courts since the June 2023 ruling. We offer the following observations.

1. School admissions: The Supreme Court has declined two opportunities to expand its SFFA holding.

Following the Supreme Court's decision in SFFA, many higher education institutions focused their admissions efforts on race-neutral factors to achieve their diversity goals. In SFFA, the Supreme Court explained that institutions could "define their missions as they see fit," and Justices' concurring opinions signaled that institutions could use race-neutral factors to achieve diversity goals, so long as those race-neutral factors are not a proxy for race. In 2024, two challenges made by coalitions of parents to high school admissions policies made their way to the Supreme Court, and the Court declined to intervene.

Thomas Jefferson High School. On February 20, 2024, the Supreme Court denied a certiorari petition to review a Fourth Circuit decision approving Thomas Jefferson High School's admissions policy. The high school's admissions policy allocated a certain number of seats to public middle schools in the area and used certain factors, including "Experience Factors," to evaluate students within each middle school. These Experience Factors included race-neutral criteria, such as an applicant's special education status, status as an English-language learner, and attendance at a historically underrepresented public middle school. The Fourth Circuit held that the admissions program comports with the Equal Protection Clause because it did not disparately impact Asian American students, nor was there evidence of discriminatory intent, both of which were needed for such a claim.¹ Although the Supreme Court declined to hear an appeal of the matter, Justices Alito and Thomas dissented. The two Justices saw the policy as intentional discrimination and were concerned that the high school's policy would become a "model . . . to potential replicators as a blueprint for evading SFFA."

Boston Exam Schools. On December 9, 2024, the Supreme Court declined to hear an appeal from Boston Parent Coalition for Academic Excellence Corp., an association of parents and students arguing that Boston's exam school admission policy was unconstitutional. In Boston, three exam-based public schools changed their admissions criteria to allocate seats based on not only exam scores but also zip code. While creating the new admissions program, officials stated their goal of "[w]ork[ing] towards an admissions process that will support student enrollment at each of the exam schools such that it better reflects the racial, socioeconomic and geographic diversity of all students (K-12) in the city of Boston." The Coalition challenged the policy. The First Circuit upheld the policy and concluded that, despite SFFA, "[t]here is nothing constitutionally impermissible about a school district including racial diversity as a consideration and goal in the enactment of a facially neutral plan."² The Court denied the plaintiff's request for certiorari.

Notably, the challenged policy was only in place for one year, after which it was replaced. Justices Alito and Thomas dissented from the denial, arguing the Court should have taken the case because the policy amounted to "racial balancing by another name and is undoubtedly unconstitutional." Thus, the First Circuit's decision continues to be the final statement on the matter.

2. Private diversity-related grants, scholarships, and fellowships have come under fire.

Legal challenges have certainly not been limited to admissions policies. Grants, scholarships, and fellowships that take race into account have been frequently targeted this past year. Outside of the courts, one organization, the Equal Protection Project of the Legal Insurrection Foundation, has filed more than 25 complaints with the Office for Civil Rights in the Department of Education ("OCR") alleging that universities' "diversity" scholarship, fellowship, and other programs impermissibly...